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Before the
Federal Communications Commission`
Washington, D.C. 20554
In the Matter of )
)
Ho'ona'auao Community Television, Inc. ) File No.: EB-
02-HL-074
) NAL/Acct. No. 200232860003
Licensee of Station KWBN-TV ) FRN 0004-0750-57
Honolulu, Hawaii )
MEMORANDUM OPINION AND ORDER
Adopted: September 3, 2003 Released:
September 5, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''), we
grant, to the extent indicated below, a petition for
reconsideration filed on May 30, 2003, by Ho'ona'auao Community
Television, Inc. (``Ho'ona'auao''), licensee of Station KWBN-TV,
Honolulu, Hawaii of a Forfeiture Order1 issued in this
proceeding. The Forfeiture Order issued a $4,000 forfeiture for
Station KWBN-TV's failure to retransmit the Emergency Alert
System Required Monthly Test (``EAS RMT'') in willful and
repeated violation of Section 11.61(a)(1)(v) of the Commission's
Rules (``Rules'').2 For the reasons discussed below, we reduce
the monetary forfeiture to $2,000.
II. BACKGROUND
2. On July 1, 2002, an agent from the FCC Honolulu,
Hawaii Resident Agent Office (``Honolulu Office'') monitored
television broadcast Station KWBN, Channel 44, from 11:15 a.m.
HST until 1:15 p.m. HST. During this period, KWBN did not
retransmit the EAS RMT initiated by Hawaii State Civil Defense at
approximately 11:15 a.m. HST.
3. On August 1, 2002, an agent from the Honolulu Office
monitored television broadcast Station KWBN, Channel 44, from
11:10 a.m. HST until 12:37 p.m. HST. During this period, KWBN
did not transmit the EAS RMT initiated by Hawaii State Civil
Defense at approximately 11:15 a.m. HST.
4. On August 2, 2002, agents from the Honolulu Office
inspected the EAS equipment installed at the KWBN studio at 875
Waimanu Street, #632, Honolulu, Hawaii 96813. The EAS receipts
generated by the EAS Encoder/Decoder show that the EAS RMTs were
not retransmitted on either July 1, 2002 or August 1, 2002. No
log entries existed in any station log explaining why no RMTs
were retransmitted in July or August, 2002.
5. On September 3, 2002, an agent from the Honolulu Office
monitored television broadcast Station KWBN-TV, Channel 44, from
11:10 a.m. HST until 12:30 p.m. HST. During this period, KWBN
did not retransmit the EAS RMT initiated by Hawaii State Civil
Defense at approximately 11:15 a.m. HST.
6. As a result of the agents' investigation, on September
27, 2002, the Honolulu Office issued a Notice of Apparent
Liability for Forfeiture (``NAL'') in the amount of $4,000 to
Ho'ona'auao3 for willful and repeated violation of Section
11.61(a)(1)(v) of the Rules. Ho'ona'auao did not file a response
to the NAL. On February 4, 2002, the Bureau issued a Forfeiture
Order affirming the forfeiture proposed by the NAL. Ho'ona'auao
filed a petition for reconsideration of the Forfeiture Order on
February 7, 2003.
7. In its petition for reconsideration, Ho'ona'auao does
not deny the violation but requests cancellation or
reduction of the forfeiture based on its inability to
pay.
III. DISCUSSION
8. Section 11.61(a)(1)(v) of the Rules specifically
requires that monthly tests be retransmitted within 60 minutes by
broadcast stations in an EAS Local Area or State. We conclude,
on the basis of the evidence before us, that Ho'ona'auoa
willfully and repeatedly violated Section 11.61(a)(1)(v).
9. We have reviewed the financial information provided by
Ho'ona'auao to support its claim of inability to pay and conclude
that a reduction of the forfeiture is warranted. Accordingly, we
will reduce the forfeiture amount to $2,000.4 Notwithstanding
the reduction, we emphasize that strict compliance with our rules
relating to EAS is important to public safety. Accordingly, we
expect full compliance in this important public safety area.
Future violations may result in even more serious enforcement
action.
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED THAT, pursuant to
Section 405 of the Communications Act of 1934, as amended
(``Act''),5 and Sections 1.106 of the Rules,6 Ho'ona'auao
Community Television, Inc.'s petition for reconsideration of the
February 4, 2003, Forfeiture Order IS GRANTED to the extent that
the $4,000 monetary forfeiture IS REDUCED to $2,000.
11. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules7 within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.8
Payment shall be made by mailing a check or similar instrument,
payable to the order of the ``Federal Communications
Commission,'' to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note
NAL/Acct. No. 200232860003 and FRN 0004-0750-57. Requests for
full payment under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.9
12. IT IS FURTHER ORDERED THAT a copy of this Order
shall be sent by first class mail and certified mail, return
receipt requested, to Ho'ona'auao Community Television, Inc., 875
Waimanu Street, Suite 632, Honolulu, Hawaii 96813, and its
counsel Robert L. Olender, Esq., Koerner, Olender, P.C. , 5809
Nicholson Lane, Suite 124, North Bethesda, MD 20852.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 18 FCC Rcd 1486 (Enf. Bur. 2003).
2 47 C.F.R. § 11.61(a)(1)(v).
3 Notice of Apparent Liability for Forfeiture, NAL/Acct.No.
200232860003 (Enf. Bur., Honolulu Office, released September
27, 2002).
4 We note that Ho'ona'auao states that since being notified
of the violation it has operated Station KWBN-TV in
compliance with Section 11.61(a)(1)(v) of the Rules.
However, we give no credit for this remedial action, since
it is well established that remedial actions taken to
correct a violation are not mitigating factors justifying
reduction of a forfeiture. See e.g. AT&T Wireless
Services, Inc., 17 FCC Rcd 21866, 21871 (2002); Seawest
Yacht Brokers, 9 FCC Rcd 6099 (1994); Station KGVL, Inc. 42
FCC 2d 258, 259 (1973).
5 47 U.S.C. § 405
6 47 C.F.R § 1.106.
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 504(a).
9 See 47 C.F.R. § 1.1914.